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H-1B Cap Exempt Jobs | Non-profit H-1B Visa Requirements

H-1B Cap-Exempt Jobs

When most foreign workers consider applying for the H-1B visa, their minds immediately turn to the regular and advanced degree quotas. While these two categories are of significant importance, they aren’t the only options available to qualified foreign workers. There are a number of scenarios that permit cap-exempt eligibility, which we will explore in this post.

H-1B Cap Exempt Explained

The H-1B cap exempt category does not have a set quota or annual limit like the Regular and Advanced Degree categories. Since it is unlimited in number and can be applied for at any point during the year it is highly sought after. However, there are certain criteria which must be met for an approval to be granted.

If you previously were under H-1B status and are outside the country you may be able to have an employer file a cap exemption for the rest of your allowed duration up to 3 years. In order to do so however you must show that you were on H-1B status in the country within the past 6 years but haven’t used up that entire time on H-1B status.

For example, Maria was employed on H-1B in the United States from February 2003 to December 2006. She would not be able to file a new cap-exempt petition because she hasn’t been in the country within the past six years. With that being said, she must file in the next regular lottery on April 1st.

Another way of going around the annual quote is through H-1B cap-exempt jobs. This entails having a cap-exempt employer file a petition on your behalf. There are specific types of organizations and employers who qualify for H-1B cap exempt petitions. According to USCIS regulations, these employers include:

  • Institutions of higher education or affiliated entities
    • Based on Section 101 (a) of the Higher Education Act, an institution of higher education must adhere to the following criteria in order to be exempt from the H-1B cap:
      • Grants admission to students who have earned a secondary education.
      • Licensed by the proper institution to provide education beyond secondary school.
      • Offers educational programs which award bachelor’s degrees or a minimum of 2-years of education towards a degree.
  • Non-profit organizations associated with a government entity or an institute higher education.
    • According to USCIS guidelines, it suffices for the non-profit organization to be connected to an institution of higher learning by means of shared ownership/control, as a branch, member or subsidiary.

To avoid any confusion, USCIS defines a nonprofit research organization as one “whose primary purpose is to directly contribute to the research or education mission of the institution of higher education.” Moreover, it defines a governmental organization as “a United States Government entity whose primary mission is the performance or promotion of basic research or applied research.”

In the past, only nonprofit entities that were associated with the federal government were considered cap-exempt. Now, due to the changes made through the Federal Register’s Final Rule, the nonprofit cap-exempt employer can be associated with a state or local government organization.

The Final Rule also broadened the definition of a nonprofit organization by replacing the phrase, “primary purpose”, to the more flexible phrase, “fundamental activity”. Making this change allows H-1B nonprofit entities to qualify even if their primary purpose is not to contribute to research, it only needs to be a fundamental activity.

Colleges and universities are the most common type of not for profit institutions and those affiliated with these entities are typically medical labs, research units, and hospitals.

Still unsure if your desired position falls under the regulations? Consult an H-1B transfer attorney to find out.

School Districts

Certain teachers are able to be considered cap-exempt depending on the School District that employs them. The USCIS lays out the requirements for a cap-exempt School District as such:

  • It must be a nonprofit organization.
  • It must maintain an Affiliation Agreement with an institute of higher education (University). A copy of this will be required to prove the affiliation.
  • It must have had an H-1B petition approved under the University Affiliation Numerical Cap Exemption at any time since 2006. You will need a copy of the I-797 approval notice.

If you are currently a teacher or administrator employed under H-1B status for a cap-exempt district and wish to transfer, then your new district will need to file a transfer petition on your behalf. If your new district is not cap-exempt, then your petition will be entered into the lottery.

Consulting Firms

Some “for profit” entities may also be permitted to file cap-exempt petitions on your behalf. These could be a consulting or contracting company that is willing to sponsor you so that you will be working exclusively for a nonprofit institution of higher education, a nonprofit affiliate of such an institution, or a nonprofit governmental research organization.

Currently on H-1B Visa Status

If you are currently under H-1B status, you are not counted towards the cap and can file cap-exempt H-1B petitions. This means that you can extend the time period you remain in the U.S., can change your terms of employment, and file a transfer without being subject to the cap. To get the most accurate picture regarding your eligibility it’s best to consult an H-1B transfer lawyer or an immigration attorney.

Benefits of Cap-Exempt Filing

There are many benefits associated with being considered cap-exempt as we briefly mentioned above. If possible, this route is a great way to get your first H-1B visa as it is not limited by the quota or any predetermined deadlines.

Also, you have the option to transfer to a new cap-exempt employer once your obtain your H-1B visa. You can find a list of cap-exempt employers and jobs by conducting a search online. There are a number of databases that are dedicated exclusively to this category.

However, if you plan to enter the U.S. through a cap-exempt employer and switch to a cap-subject employer, you will be subject to the cap. For this, you will need to have your new employer file a new H-1B petition in the next lottery and hope that your petition is selected.

Typically, when individuals contemplate H-1B cap exempt jobs they automatically think they are limited to teacher positions or other collegiate roles. Fortunately, that’s far from the case. There are a number of positions within universities and colleges which may be applicable to you.

For instance, an H-1B cap exempt employer may seek help in the IT department, finance department, hospital or medical facility. Identifying a cap-exempt employer has become relatively simple with the number of online databases available which post H-1B cap exempt jobs.

Cap Exempt H-1B Processing Time

H-1B cap exempt processing times may vary although on average regular processing takes anywhere from 3-4 months while opting for premium processing can shorten your petition’s processing time to 15 days. Learn more about H-1B transfer premium processing.

IMPORTANT UPDATE: As of March 3, 2017, the USCIS will be temporarily suspending the premium processing service for all H-1B petitions filed for the 2018 season beginning April 3rd, 2017. This suspension includes all petitions filed for H-1B transfers and extensions filed after that date.

Summary of the Cap Exempt H-1B Category

The H-1B cap exempt category has:

  • No annual limits or quota imposed
  • No predetermined filing dates
  • No predetermined employment start dates

However, the requirements to get into this highly sought-after category are high. If you think that your job or employer qualifies as cap-exempt, speak with a qualified immigration attorney to learn the next steps.

Choosing an H-1B Visa Lawyer

Choosing a qualified H-1B visa lawyer is an integral part of the process. Doing so, however, takes careful consideration and knowledge of what to look for. Our H-1B transfer lawyers have years of experience handling these sorts of cases and can help you file for regular or premium processing immediately. You can fill out this form to contact us and find out if your qualify for a

If you would like to get in touch with one of our attorneys, you can fill out this form to contact us and find out if your qualify for a free phone consultation to learn more about the process and your best options.

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